Turkey: Cash Compensatıon In Case Of Cancellatıon Of Dısposıtıon

Against the debtor who does not pay his debts with the intention of harming his creditor, the third party's obligation to pay compensation, which is one of the results of the action for Cancellation of Disposition regulated in Articles 277 and 284 of the Enforcement and Bankruptcy Law, will be evaluated.

I. INTRODUCTION

With the action for annulment of savings regulated under Articles 277 and 284 of the Enforcement and Bankruptcy Law, it is requested that the savings transaction validly made by the defendant debtor be deemed null and void for the plaintiff creditor, and if the court decides to annul, it is possible to continue the enforcement limited to the amount of the plaintiff creditor's receivable.

In terms of this case, which can be filed jointly by the creditor against the debtor who transferred his properties (movables and/or immovables) to third parties with the intention of not paying his debts and causing damage, and against the third parties who transferred the assets, if the annulment case is related to the value that replaces the goods that the third party has disposed of, that is, if it corresponds to the value that replaces the goods that the third party has disposed of, the third party's compensation obligation will come to the agenda in proportion to these values, but not more than the plaintiff's receivable).

According to the second paragraph of Article 283 of the Execution and Bankruptcy Law; "If the annulment case is related to the value that replaces the goods that the third party has disposed of, the third party shall be sentenced to cash compensation (not more than the claimant's claim) in proportion to these values."

In other words, in the event that the property subject to the disposition has been disposed of by the third party who has entered into a transaction with the debtor, the action for annulment shall be related to the replacement value of such property, and in the event that the action is lost, the third party may be obliged to pay compensation in proportion to this value.

In principle, with the annulment action, the debt of the debtor or the third party to endure the execution may come to the agenda, while if it is not possible to fulfill this debt (in cases where the thing subject to the disposition is disposed of, destroyed, consumed), the debt of compensation may come to the agenda. In other words, in cases where the thing subject to the annulled disposition is in the hands of the third party, the compensation obligation will not arise.¹.

II. ON THE THIRD PARTY'S COMPENSATION OBLIGATION

In the second paragraph of Article 283 of the Execution and Bankruptcy Law; "If the annulment case is related to the value that replaces the goods that the third party has disposed of, the third party shall be sentenced to compensation in cash (not more than the claimant's receivable) in proportion to these values." Again, the upper limit of the compensation obligation is determined as "not more than the claimant's receivable".

Therefore, the third party's compensation obligation is limited to the creditor's receivable and its accessories. Considering that the right to annulment will end upon the creditor's receipt of its receivable, it is understood that the third party's compensation responsibility cannot be more than the amount of the receivable in any case.

Again, in the second paragraph of Article 281 of the Enforcement and Bankruptcy Law; "The judge may issue a precautionary attachment order upon the request of the creditor about the goods that are the subject of the disposals subject to annulment. The necessity and amount of the collateral shall be determined by the court. However, in the event that the lawsuit is related to the value substituted for the disposed goods, a precautionary attachment decision cannot be made without providing collateral" and it can be accepted that the third party will be responsible for the replacement value in the calculation of the compensation with the "value substituted" here.

Although the substitute value is stated as the value that replaces the disposition of the thing subject to disposal, if it is accepted that the third party is held liable with the substitute value, the actual value of the thing will not be important and the determination of the value received by the third party in return for the thing will be sufficient. As such, considering the fact that the third party may have disposed of the thing subject to disposal at/above/under its value, it should be accepted that it would be in accordance with equity to take into account the determination of the real value of the thing in the calculation of the compensation.

As a matter of fact, it has been adopted by the established jurisprudence of the high courts that the third party shall be held liable for the real value of the thing subject to the disposition. As a rule, it is accepted that the creditor would have been able to obtain the real value of this thing (the benefit to be obtained from its sale through auction) if the thing subject to the disposition subject to annulment had not been transferred.

In the calculation of the compensation, while taking into account the real value of the thing subject to disposal, it has been adopted that the date on which the thing subject to disposal was transferred (destroyed, consumed, etc.) by the third party should be taken into account, and the determination of the value by taking into account the date of the filing of the annulment lawsuit or the date of the fruitless seizure has not been adopted on the grounds that it will have unlawful consequences.

In the event that the court decides to annul, the plaintiff creditor will be able to request the collection of the compensation debt by continuing through the same enforcement proceeding file, limited to the amount to be received in terms of the plaintiff creditor, and in case there is more than one annulment lawsuit filed, it is considered that other creditors, if they win the lawsuit, may apply to the creditor who has collected their receivables on the grounds of unjust enrichment by proving that they have the conditions to participate in the attachment if the savings subject to annulment had not been made.

Another issue, which is accepted by the jurisprudence of the established high courts, is that, in the event that compensation is awarded in the annulment action, the execution of interest on the calculated amount will not be in accordance with the purpose of the annulment action. As explained, since the compensation debt of the third party covers the creditor's receivable and its accessories, it covers the debtor's debt to the creditor in the proceeding that is currently ongoing against the debtor and subject to the annulment case, and since interest is already being charged on thereceivable with this proceeding, it is adopted that it would be unlawful to charge interest on the third party separately

In the sixth paragraph of Article 283 of the Execution and Bankruptcy Law; "If the donor is in good faith, he is obliged to return only the amount in his possession at the time of the lawsuit" and a limitation has been introduced regarding the third party's compensation obligation. The limitation here is not related to the annulment condition and may be taken into consideration in determining the amount of the third party's debt. Considering the provisions regulated in Articles 277 and 284 of the Enforcement and Bankruptcy Law regarding the action for annulment of the disposition as a whole; it is accepted that the third party will be in bad faith if it is understood that the third party knew or should have known that the obligation to endure the execution on the thing subject to the disposition may arise. In other words, the proof that the third party knew or should have known that the disposition subject to annulment was made with the intention to harm the creditors of the principal debtor means the proof of good faith. In this case, it is accepted that the third party who is in good faith at the time of the disposals subject to annulment and in the following period may benefit from this provision.

III. CONCLUSION

As a rule, the third party who obtains the thing subject to the action for annulment of the disposition has an obligation to endure the execution against the creditor, and when the annulment action is related to the price, the third party's compensation obligation comes to the fore. In other words, the obligation of compensation is secondary and arises in cases where the performance of the obligation to endure the execution is impossible.

In the event that a compensation obligation arises, the value to be taken as the basis is important, and it is adopted that the calculation should be made by taking into account the actual value of the thing subject to cancellation at the date of the removal from the assets of the principal debtor and that it should not be more than the amount of the principal receivable.

REFERENCES

- Talih UYAR- Alper UYAR- Cüneyt UYAR, Cancellation of Savings Cases in Enforcement and Bankruptcy Law, 7th Edition, 2021,

-Prof. Dr. Lecturer. Prof. Dr. Anıl KÖROĞLU, Compensation in Cash in the Action for Cancellation of Disposition, 1st Edition, 2022

-Mahmut COŞKUN, Execution and Bankruptcy Law with Explanation and Jurisprudence, 7th Edition, 5th Volume, 2021

-Kazanci Jurisprudence Program

-Lex Pera Jurisprudence Program

Footnote

1. See: Court of Cassation 17th LD. 26.4.2010 D. 7066/3827; 9.4.2009 D. 2452/2220: "In the event that the same immovable property is subsequently disposed of by the third party through forced execution due to the debt of the third party who purchased the immovable property subject to the lawsuit from the debtor, the lawsuit will be converted into compensation and the third party will be held liable for compensation over the actual value of the immovable property -to be determined by the expert- on the date of its disposition, not exceeding the receivable from the enforcement proceedings and its accessories". For a decision in the same direction, see 17th LD of the Court of Cassation 9.11.2009 D. 6371/7282; 16.6.2009 D. 1654/4310; 24.3.2009 D. 4582/1708 etc: "In the event that the third party disposes of the property subject to the disposition, the plaintiff's receivables and its accessories shall be limited to the value of the disposition on the date of disposal"

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